Labour & European Law Review Weekly Issue 515 12 April 2017
The Supreme Court has held In the matter of an application for judicial review by Denise Brewster that the requirement for a cohabiting partner to be nominated by a scheme member in order to be eligible for a survivor’s pension cannot be objectively justified.
Ms Brewster got engaged to her partner, William Leonard McMullan, with whom she had lived for about ten years on Christmas Eve 2009. Sadly, he died two days later.
For about 15 years before he died, he had paid into the Local Government Pension Scheme. She applied for a survivor’s pension on his death, but the Northern Ireland Local Government Officers’ Superannuation Committee (NILGOSC) said it had not received a form from him nominating her and refused to pay her. She applied for a judicial review of that decision.
The Local Government Pension Scheme (Benefits, Membership and Contributions) Regulations (NI) 2009 state that unmarried cohabiting partners who have lived together for at least two years have to be nominated by their pension scheme member partner to be eligible for a survivor's pension. This requirement does not apply to married or civil partner survivors, but was similar to other local government pension schemes in England and Wales and Scotland at the time.
Decisions of lower courts
The High Court held that the requirement to nominate a cohabiting partner in the 2009 Regulations was incompatible with article 14 of the European Convention on Human Rights (which prohibits discrimination on any ground such as sex) read together with article 1 protocol 1 (which entitles people to peaceful enjoyment of their possessions).
The Court of Appeal, however, allowed the appeal against this decision. In the meantime, the equivalent regulations in England and Wales and Scotland were amended to remove the nomination requirement. Ms Brewster applied to the Court of Appeal to ask for her appeal to be re-opened but it refused and she appealed to the Supreme Court.
Decision of Supreme Court
The Supreme Court agreed that, because it constituted a “possession”, a survivor’s pension fell within the parameters of article 1, protocol 1. As a surviving unmarried cohabiting partner, it also held that Ms Brewster was in an analogous situation to a surviving married partner or civil partner. The only issue, therefore, was whether the interference with her right to property could be “objectively justified”.
According to the Department of the Environment of Northern Ireland, the objective behind the nomination requirement was to establish the existence of a cohabiting relationship equivalent to marriage or civil partnership and identify the wishes of the scheme member. However, as the 2009 Regulations already required a surviving partner to establish that a genuine and subsisting relationship existed, the nomination requirement had no intrinsic value.
The Supreme Court concluded that as the objective of the provisions in the regulations was to remove the difference in treatment between a longstanding cohabitant and a married or civil partner of a scheme member, it made no sense to require the surviving cohabitant to be nominated by that scheme member.
As there was no rational connection between the objective and the imposition of the nomination requirement, the Court upheld Ms Brewster’s appeal. It made a declaration that the nomination requirement in the 2009 Regulations should be disapplied and that Ms Brewster was entitled to receive a survivor’s pension under the scheme.